The State Survey and Complaint Process - Is it Effective?

The Certification Survey

Under federal law, nursing homes that are participating in the Medicaid and Medicare programs are to undergo an annual survey and certification process. The purpose of the survey process is to assess whether the quality of care, as intended by the law and regulations, and as needed by the resident, is actually being provided in nursing homes. Nursing homes must be in substantial compliance with Medicaid and Medicare care requirements as well as state law. If a nursing home is found to be out of compliance, federal law sets forth enforcement options such as denial of payment for new admissions, civil money penalties, revocation of Medicaid and Medicare certifications, transfer of residents and the imposition of temporary management. In implementing the survey and certification process, several expectations of nursing homes were established. These expectations were:

• Nursing homes participating in the Medicaid and Medicare programs remain in substantial compliance with the Medicaid/Medicare care requirements.

• All deficiencies will be addressed promptly.

• Residents will receive the care and services they need to meet their highest practicable level of functioning.

Surveys are supposed to emphasize resident outcomes through observations, interviews and review of medical records. Surveyors are to ascertain whether a nursing home is actually providing the required and needed care and services, rather than whether the facility is capable of providing the care and services.

Certification surveys are conducted on an annual basis by a state or local survey agency that has entered into an agreement with the Health Care Financing Administration (HCFA). In Oklahoma, the survey agency is the Oklahoma State Department of Health. Surveys, by law, are supposed to be unannounced.

Listed below are the survey tasks conducted by the survey agency for each survey:

• Task 1. Entrance Conference

• Task 2. Obtain Resident Sample

• Task 3. Tour of the Facility. Resident Needs. Physical Environment. Meeting with Resident Council Representatives. Tour Summation and Focus of Remaining Survey Activity

• Task 4. Observation/Interview/Medical Record. Review of Each Individual in the Resident Sample (including drug regimen review)

• Task 5. Drug Pass Observation

• Task 6. Dining Area and Eating Assistance Observation

• Task 7. Forming the Deficiency Statement

• Task 8. Exit Conference

The meat of the survey process lies in Tasks 4 (Observation/Interview/Medical Record) and 7 (Forming the Deficiency Statement). Observations are to be made of the facility operations and resident needs and conducted concurrently with interviews of residents, family and direct care staff. Interviews of residents are supposed to be conducted in private and involve activities of daily living, grooming/hygiene, nutrition/dietary, restorative/rehabilitation care and services, activities, social services, and resident rights. The medical records review involves reconciling the observation/interview findings with the record, reconciling the record against itself, and performing the drug regimen review.

A deficiency statement is formed from the results of the survey. A deficiency means a nursing home's failure to meet a care requirement as specified in the federal regulations. Deficiencies determined from the survey process are written up in the Survey Report Form that contains information about all of the negative findings of the survey. Deficiencies alleged by staff, residents, or family members, must be confirmed through records, interviews and observations. It is the position of the survey agency that if staff, resident, or family member allegations are not confirmed through records, interviews or observations, the nursing home cannot be cited as deficient. Once the survey team determines that deficiencies exist, they are required to determine the seriousness of the violations. Consideration is given to whether the deficiency constitutes immediate jeopardy, actual harm or not and whether the deficiency is isolated, constitutes a pattern or is widespread.

The primary role of the surveyor is to assess the quality of care and services of a nursing home as it relates to the statutory and regulatory requirements for participation in the Medicaid and Medicare program. A 2225 secondary role of the surveyor is to provide consultation to the nursing home and consumer community that includes participation in informational activities and meetings with the nursing home and consumer associations and other groups.

The Complaint Process

Any person may make a complaint against any nursing home to the licensing and certification branch of a state health department and request that the nursing home be inspected to substantiate the complaint. The complaint may be made orally or in writing. Once a complaint is received, the state agency assigns an inspector to make a preliminary review of the complaint and the complainant is suppose to be notified of the name of the inspector and proposed course of action. An onsite visit to the nursing home to investigate the complaint is supposed to be made within 10 working days of the receipt of the complaint. The complainant may request that he or she, or a representative, accompany the inspector on the visit to the nursing home unless the inspector determines that the privacy of any patient would be violated. By law, there is not supposed to be any advanced notification made to the nursing home of the investigation. If a public employee gives any advanced notice, he or she would be violation of state and federal laws and subject to disciplinary action.

When conducting the investigation of the complaint, the inspector is supposed to collect and evaluate all available evidence based on observed conditions, statements of witnesses and a review of facility records. As a result of the investigation, the inspector determines whether the complaint is substantiated or unsubstantiated. If the complaint is substantiated, a citation may be issued against the nursing home. The complainant is supposed to be notified of the determination in writing.

If the complainant is dissatisfied with the determination, he or she may request an informal hearing that would be held with the state agency and may include a representative of the nursing home. If the complainant is dissatisfied with the results of the hearing, he or she may appeal it to a higher level for review. This review process is usually done by an appeals unit and the complainant is notified of the results in writing.

How Effective is the Survey and Complaint Process?

The federal laws that were enacted under OBRA by the Congress in 1987 to regulate care provided by nursing homes are comprehensive and, if followed to the letter, should result in good quality of care for everyone who is admitted to a nursing home. In addition, the survey and complaint process, as spelled out in the laws, should provide sufficient oversight of nursing homes to make sure they are following the laws and that the residents are protected from neglect and abuse. But, unfortunately, the federal and state laws are largely being ignored by most nursing homes and the survey and complaint process has been ineffective in enforcing the laws and protecting residents from neglect and abuse. On paper, the survey process should be effective, but in reality it is not. As a result of interviews of many current and former nursing home employees on all levels, family members, nursing home reform activists, resident advocates, ombudsmen, current and former state inspectors, and from personal observations of surveys and review of thousands of surveys and complaint results, it is evident that state surveys have been largely ineffective and have failed, in most cases, to determine the true condition of nursing homes and detect neglect and abuse or a pattern of poor quality of care. Even for those few nursing homes that the state inspectors have discovered are providing poor quality of care, they have failed to change the practices. The reasons for the failure of the survey process are numerous. The following are some of those reasons:

1. Most nursing homes are aware, in advance, of when they will be surveyed.

2. Because of the advanced knowledge, staffing and supplies are usually increased dramatically during the survey to give the inspectors the illusion that the facility has sufficient staffing and supplies to provide good quality of care. This charade only lasts as long as the state inspectors are in the facility. Staffing and supplies disappear quickly once the state inspectors leave.

3. Corporate pre-survey teams and/or consultants descend on a nursing home to prep for a survey.

4. Meetings are held with nursing home staff prior to a survey to lay out the ground rules such as telling the nursing aides they can not communicate with the state surveyors.

5. State inspectors can only go by what they observe and see in the records. Complaints by family members and/or staff of poor conditions in a nursing home are often ignored by the inspectors because they can not "see it" or "find it" in the records.

6. Since charting of resident records are done mainly to satisfy state inspectors, many of the charts have been described by employees as a "good work of fiction." Care is often charted as being provided when it has not such as turning and repositioning of residents every two hours, bowel care, grooming and oral care. Also, percentages of food eaten are often overestimated and, therefore, inaccurate. Resident charts are relied on by the inspectors when they are reviewed. Inaccurate and falsified charting is rarely discovered by state inspectors.

7. It is not unusual for certain records to be hidden during a survey.

8. Deficiencies are often given lip service by nursing homes who submit a "corrective plan of action" that often sounds good on paper, but is rarely enacted by the nursing home. Deficiencies are often repeated each year with the same "corrective plan of action" submitted.

9. Serious deficiencies are often appealed by the nursing home through their attorneys who often intimidate the state agency to water down the deficiencies or just eliminate them all together.

10. Aggressive inspectors are often pressured by higher ups to back off nursing homes when they find serious problems.

11. Fines imposed as a result of citations issued are often not paid or enforced.

12. Nursing homes through their state associations contribute large sums of money to legislators and elected state officials.

13. The rigidness and predictability of state agencies in scheduling and conducting surveys and complaint investigations.

The complaint process has also failed to substantiate most of complaints filed. Unless the state investigator finds a "smoking gun," the complaint will usually be unsubstantiated. Therefore, if a family member files a complaint with the state, it is important to have documented the problem thoroughly, including taking names, and also, if possible, take plenty of photographs showing the result of neglect and abuse of the elder such as decubitus ulcers or bruises, etc.